Dispatches from the Creation Wars

Michigan Attorney General Mike Cox has joined with several other state AGs to research the question of whether the so-called Nebraska compromise — incentives added to the Senate health care reform bill to gain the vote of Nebraska Sen. Ben Nelson to end the debate and bring the bill to the floor for a vote — might be unconstitutional. MSNBC reports:

The top prosecutors in seven states are probing the constitutionality of a political deal that cut a funding break for Nebraska in order to pass a federal health care reform bill, South Carolina’s attorney general said Tuesday.

Attorney General Henry McMaster said he and his counterparts in Alabama, Colorado, Michigan, North Dakota, Texas and Washington state — all Republicans — are jointly taking a look at the deal they’ve dubbed the “Nebraska compromise.”

“The Nebraska compromise, which permanently exempts Nebraska from paying Medicaid costs that Texas and all other 49 states must pay, may violate the United States Constitution — as well as other provisions of federal law,” Texas Attorney General Greg Abbott said.


I couldn’t imagine what constitutional provision might be invoked to make that compromise, as unseemly as it may be, unconstitutional. I called up a friend who teaches constitutional law; he couldn’t either. And the fact is that the courts would almost certainly not involve themselves in such a political question.

The Republicans are acting as though the deal to get Nelson’s vote was some sort of unprecedented instance of political corruption, a position that is laughable to anyone who has watched how legislatures operate. This is, in fact, quite routine. That’s one reason for the old witticism that laws and sausage are two things you don’t want to watch being made because the process is much uglier than the final product.

The process of making legislation requires negotiation and sweetheart deals to help a legislator out and get something for his state or district are cut all the time in order to secure their vote — and this is done by both parties. The faux outrage coming from Republicans on this may well be effective, but only because the audience it’s aimed at is ignorant of the typical legislative process. Then again, faux outrage has become a primary currency in our political system.

There may well be some statutory provision that makes this particular deal illegal, but since new law supercedes old law even that seems unlikely to get a court’s attention. There certainly is no constitutional issue that a court would concern themselves with in this situation.

And just a side bit of media criticism: MSNBC should not have described these AGs as prosecutors in this situation. An attorney general sometimes does act as the state’s highest prosecutor, but any legal action taken here would be civil rather than criminal. No one is facing potential prosecution under any circumstances.